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Ubuk v Darius [1994] PNGLR 278 (25 November 1994)

PNG Law Reports 1994

[1994] PNGLR 278 - Robson Ubuk v Rachel Darius 

[1994] PNGLR 278

N1278

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ROBSON UBUK

V

RACHEL DARIUS

Lae

Sevua J

21 October 1994

25 November 1994

INFANTS AND CHILDREN - Custody - Female child aged 20 months - Customary law - Infants Act Ch 278 - Constitution Sch 2.1

CUSTOM - Repugnancy.

WORDS AND PHRASES - "Mother factor" in custody cases - "Welfare of the infant"..

Facts

The applicant and respondent lived together in a de facto relationship as a result of which the latter gave birth to a female child, who was the subject of the application. That relationship ended. The applicant had a customary law wife and three children from that marriage. He said his wife was happy to accept the child of his de facto relationship into her family. He also claimed an entitlement to custody of the child pursuant to custom.

Held

1.       The welfare of the infant is not expressed as the paramount consideration in s 4 of the Infants Act Ch 278, although it is a very important consideration to be taken into account along with the other matters.

2.       The custom cited is repugnant to the general principles of humanity and, therefore, inappropriate and inapplicable to this case. Thus, the applicant can derive no assistance from such custom.

3.       The mother factor is a deciding factor in awarding custody in this case.

4.       Custody of the infant is granted to the respondent, with the applicant to have access.

Cases Cited

Papua New Guinea cases cited

Bean v Bean [1980] PNGLR 307.

RG v MG [1984] PNGLR 413.

Tom v Kayiak [ 1992] PNGLR 171.

WP v DP [1982] PNGLR 1.

Other cases cited

Gronow v Gronow [1979] HCA 63; (1979) 54 ALJR 243; 144 CLR 513; 29 ALR 129.

Hobbs v Ludlow (1976) FLC 75, 536.

Counsel

D Poka, for applicant.

P Yayabu, for respondent.

25 November 1994

SEVUA J:  This is an application pursuant to s 4 of the Infants Act Ch 278, for custody of a female child aged 20 months.

The applicant was married by custom to his present wife, Naomi Keru, in 1977. They have three children, aged 11, 13, and 15 years. His wife is from Kama village in Goroka whilst he comes from Siassi Island in Morobe Province. They reside in Goroka. The respondent also comes from Siassi Island. She and the applicant began living together in a de facto relationship. As a result, the respondent gave birth to a female child, the subject of this application, on 14 December 1992. This de facto relationship terminated on 2 September 1993 and, subsequently, the respondent came to reside in Lae. The applicant still resides in Goroka with his wife and three children. On 3 September 1993, the Goroka District Court granted temporary custody to the respondent until a permanent custody order was made. The applicant and his family reside in accommodation provided by the employer, which includes free rent and garbage, electricity, and other public utility services. There is no evidence of his earning capacity. He says between February and May this year, he transmitted K50 to the child each fortnight; however, the respondent had refused to collect the money from the post office. He also says, "Naomi has been a good wife to me, and she has been looking after the three children". Whilst it may seem he had a very good family, he commenced living with the respondent in a de facto relationship from 1991 until September last year. He said he has discussed this matter with his wife, Naomi, and she is "happy to accept Anita and look after her like the other three children of our marriage".

The applicant attributed the problems in his relationship with the respondent to the respondent herself. He said she was a gambler who, on many occasions, had left the child in the house. She was always picking fights with his female colleagues, which caused him embarrassment and shame. He said the respondent "deserted" him and, despite all his attempts to reconcile, the respondent had made up her mind to leave. Really, all these problems were brought about by the applicant himself, in my view. He had a very good wife and three children. Why did he want another woman?

The respondent is a qualified community school teacher, having graduated on 10 December 1980 from Balob Teachers College in Lae. She is also a trained theologian in parish work. Prior to her meeting the applicant, she was employed as Co-ordinator for Women's Work in the Lutheran Church in Siassi District. She left her work when the applicant promised to marry her, and went to live with him in Goroka. She eventually discovered that the applicant had a wife and three children. She regards herself as a committed Christian, although I find this quite contrary to her actions. I mean, when she became aware that the applicant was married with three children, why didn't she leave him before she had his child? The child is still at its infant stage and they live together in Lae. The respondent is employed as a script writer by the Lutheran Church of Papua New Guinea, and she is involved in religious instruction programs in community schools. She earns a net income of K147 a fortnight. Her employer has provided her with free accommodation, a two-bedroom house at Balob Teachers College, which is a few minutes walk from her office. During work, Anita is cared for by the respondent's niece, who lives with them.

The applicant claims he is entitled to custody pursuant to the customs of the Siassi Island people. He relies on the affidavit of Kauk Akes, an elder of Malai village, Siassi Island, who claims to be well conversed with the traditional customs of the Siassi people known as Mailan. The deponent says that the Mailan custom allows for a man and a woman to live together for some time without the payment of bride price. This, he says, is to allow for assessment of whether or not the woman can make a good housewife, respect the customs of the man's community, and be able to bear children. If the woman satisfies these requirements, a customary marriage will then take place, and bride price will be paid. Where the man and woman have lived together over a period of time and the woman bears a child, but no bride price is paid and she leaves with the child, the Mailan customs allow for no payment of bride price, and the mother forfeits her right to claim for custody of the child. Custody is given to the man on condition that some compensation is paid to the woman for bearing the child. I will discuss this further later.

Section 4 of the Infants Act provides that, "On the application of the father or mother of an infant, the Court may make such order as it thinks proper regarding the custody of the infant and the right of access of either parent having regards to:

(a)      the welfare of the infant; and

(b)      the conduct of the parents; and

(c)      the wishes of each parent."

There is no statutory definition of the phrase, "welfare of the infant". However, in Bean v Bean [1980] PNGLR 307 at 320, Kapi J (as he then was) said, "the welfare of the infant is usually referred to as the comfort, health, moral, intellectual and spiritual welfare of the child. These elements, in turn, are fundamentally dependent on the existence of security, stability, wise discipline and genuine affection in the home. In every custody application, when considering the welfare of the children, the court must have regard to all these matters."

Mr Poka, for the applicant, has submitted that I refer to the affidavit of his client, because his client is able to provide for the welfare of the child in the manner alluded to by His Honour. By implication, Mr Poka is asking me to treat the welfare of the infant as the paramount consideration in this case. Similarly, Ms Yayabu, for the respondent, has submitted that the welfare of the child is the paramount consideration and, therefore, I should consider her client as the suitable parent to award custody of the child to. To say the welfare of the infant is the paramount consideration is erroneous, because the welfare of the infant is not expressed in s 4 of the Act to be the paramount consideration (my emphasis). See WP v DP [1982] PNGLR 1. The welfare of the infant is one of three matters the Court must have regard to when considering the question of custody. These three matters are provided for under s 4 of the Act, which I have already referred to.

The applicant has emphasised his wife's willingness to care for the child. However, he completely ignored the fact that the child was the product of this adulterous relationship with the respondent. I do not believe for a moment that his wife can accept the child when the child was born as a result of his extra-marital affairs with the respondent. In this country, where adultery is a major contributing factor in domestic disharmony, I do not consider that it will be that simple, that his wife is willing to care for the child. Surely, under such circumstances, the applicant's wife may well be antagonistic about the whole idea of having to care for the product of her husband's adulterous relationship. I would rather prefer the respondent's argument that, "Naomi will regard the child as the product of adulterous relationship between the applicant and the respondent, therefore, may not treat the child properly". I consider that there is some sense in this argument, and I can see why the respondent, in her affidavit, is quite apprehensive about the applicant's idea. Besides, the applicant's evidence is hearsay. If it is true that his wife is willing to accept the child, then it would have been more appropriate and acceptable if she had deposed to that in her own affidavit.

What I have discussed above is, in my view, significant to the question of conduct of the parents. The applicant was married with three children, yet he was having an affair with the respondent for approximately two years. What guarantee is there he would not repeat his adulterous relationship with another woman? He has not been totally loyal to his wife and three children, so how is he going to rear this infant if he cannot be a trusted father. In my view, his past behaviour is tantamount to him being an unsuitable father, therefore unfit to care for a very young infant. Whilst I acknowledge his wish to have custody of this child, I am of the view that his conduct in the past is indicative of the sort of father he is, and the interest of the infant cannot best be served by him. In any case, his wish is to be considered along with the other two matters in s 4 (a) and (b) of the Act and, of course, the wish of the respondent. In Tom v Kayiak [1992] PNGLR 171, Los J said at 172, "The law is settled in the country that in any custody application the paramount consideration is the best interest of the children". His Honour cited the decision of McDermott J in RG v MG [1984] PNGLR 413, who stated the following as relevant considerations:

1.       The claim of the mother and what is often referred to as her preferred role; WP v DP [1982] PNGLR 1;

2.       the relative circumstances in which it is intended to raise the child;

3.       the ability to provide for the child's advancement in life;

4.       the age of the child; and

5.       provision of the maintenance of existing relationships.

RG v MG deals with the custody application of an illegitimate female child, aged three years, by the mother. The judge awarded custody to the mother, with access to the father. I agree with McDemortt J and Los J that, on an application for custody, the paramount consideration is the best interests of the child. And I also agree with Kapi J (as he then was) that the Court must have regard to all those matters he alluded to pertaining to the welfare of the infant in Bean v Bean. I further agree with Andrew J and Los J that the "mother factor" can be a decisive factor in an award of custody. I would adopt and apply the rationale applied by the Full Court of the Family Court and the High Court in Hobbs v Ludlow (1976) FLC 75, 536 at 539 and Gronow v Gronow [1979] HCA 63; (1979) 54 ALJR 243 at 249, respectively, as cited by Andrew J in WP v DP. Whilst the mother factor is not a rule of law, I cannot say that Mason and Wilson JJ erred in Gronow in saying that it was a cannon of common sense founded on human experience. I agree, it is a matter of weight or value, and I cite my learned brother Andrew J in WP v DP at 3:

"In the circumstances of this case I think it deserves much weight.... To my mind they are greatly in need of a mother's care and the special relationship between mothers and daughters of that age. If custody were granted to the applicant, they would be deprived of that care."

I consider that, in the present case, the mother factor should be in favour of the respondent, especially where the infant is 20 months old and is still breast feeding. The special relationship of mother and daughter weighs heavily against the applicant.

The applicant has produced evidence that, by custom, he is entitled to the custody of the child, although he has not argued this point. I assume he wants me to consider it pursuant to Sch 2.1 of the Constitution. In the evidence he produced, living together between a man and a woman serves three purposes. The woman must satisfy, firstly, that she can respect the custom of the man; secondly, that she can be a good housewife; and finally, that she can bear children. In my view, the first requirement does not apply in this case, because both parties are from Siassi Island. The other two requirements are of some concern to me. During the living-together period, the woman is expected, no doubt, to do all the usual domestic chores, and not only that but, I suppose, she indulges in free and voluntary sexual intercourse as well. In other words, she is seen and used as a sexual object. Furthermore, if she cannot bear children, that's it, she cannot marry the man. In my view, she is being used as a vehicle for child bearing, because the only time you know if she can bear children or not is when she becomes pregnant. Whether one views it subjectively or objectively, the woman is a sex object. So where is the morality and value of humanity in this woman? How does the custom accord with the general principles of humanity? How does a woman in such a situation free herself from this seemingly sexual domination? I consider the Mailan customs repugnant to the general principles of humanity and, therefore, inapplicable to the present case. The applicant can gain no assistance from that customary law.

I reiterate that the child in the present case is 20 months old and is still being breast-fed by the respondent. The pharmaceutical advice referred to by the applicant, that the child can be bottle-fed, is not only inconclusive but hearsay. If he has sought that advice, then he must produce it in admissible form. Besides, there is a suggestion that when the respondent tried to bottle-feed the child, she vomited and disliked it. Obviously, this means that the child could not be bottle-fed, at least, not at this stage anyway. There is evidence by the respondent that she has her three meals a day with the child and that accommodation provided to her, where she is currently residing with the child and the baby-sitter, is within minutes of walking distance to her place of employment. A point was made by the applicant that the respondent was a gambler and on many occasions had left the child in the house whilst she went gambling. I consider this as mere accusation, because there is no evidence to support this, and I gather that, in view of the animosity between the applicant and the respondent, one party tries to discredit the other. I, therefore, take no further issue on this point.

I have already adverted to the relevant provision of the Infants Act and the principle to which regard should be had under the Constitution as regarding customs. I have also adverted to the evidence produced by the applicant in relation to the issue of custody in accordance with the customs of the Siassi people, and I have made a finding that that custom is not applicable in this case.

In all the circumstances of the case, I consider that the welfare of the child at this stage would be best served if she remains with her mother. I will reiterate that she is only 20 maybe 21 months old now and that she is still breast-feeding. In my view, the mother factor would outweigh any other consideration in so far as the applicant is concerned. I am satisfied that the respondent can properly provide for the child, and I award the custody of the child, Anita, to the respondent. I order that the applicant have access to Anita. Such access is to be decided by mutual consent and satisfactory arrangements between the parties. I will make this remark, which I feel I ought to because I believe there has been a certain degree of animosity between the parties in relation to the issue of custody. I understand that, in the past, the respondent has made it difficult for the applicant to see or have access to the child. I will say this to the respondent: if she disobeys my order as to access in favour of the applicant, this Court may consider forfeiting her right to custody. I trust that this will not be necessary. I hope that both parties will act in the best interest of the child, and I will leave the happiness of the child to both parties as responsible parents of this child. I order the applicant to pay the respondent's costs, to be taxed if not agreed upon.

Lawyer for applicant: Milner & Associates.

Lawyer for respondent: Yayabu Lawyers.